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hydrofix writes "Techdirt has been following the story of the DoJ's classified interpretation of the PATRIOT Act. Specifically, it's all about Section 215, the so-called 'business-records provision,' which empowers the FBI to get businesses to turn over any records it deems relevant to a security investigation. Senators Ron Ryden and Mark Udall have been pushing the government to reveal how it uses these provisions to deploy 'dragnets' for massive amounts of information on private citizens 'without any connection to terrorism or espionage,' a secret reinterpretation that is 'inconsistent with the public's understanding of these laws.' After NYTimes reporter Charlie Savage had his Freedom of Information request denied, the NYTimes has now sued the government (PDF) to reveal how it interprets the very law under which it's required to operate."

is that we have to sue our own government in an attempt to force them to tell us about the laws they are enforcing against us. That alone indicates a huge problem with the system, regardless of the nature of the laws themselves.

If I could vote in one constitutional amendment right now, it would be "No Secret Laws". That alone would fix a great deal of evil by shining some light into the many dark corners of our government.

Secret laws work because they want you to do things they *can't* require you to do, so they pass a law that says nothing and hide it, hinting that you'll get in trouble for some unrelated things. What are you going to do, break the "law" or follow it voluntarily, even if the law, if it were what they said it was, wouldn't be enforcable. But you can't challenge it, as it's not even there.

Ignorance of the law is no excuse for breaking it. We will not even tell you what crime you are committing. Maybe you didn't break any law, but now you're resisting arrest by verbally arguing with an officer.

There is an important, yet meaningless, distinction between what you're saying and what they're doing.

They aren't hiding the law. They're hiding their interpretation of the law. Anybody can look up the law and read it. The government just decided they think the law means something different than anybody else thinks it means, and they won't tell you what.

You and I know that, empirically, hiding how the law will be enforced is the same thing as hiding the text of the law itself. Either way, the public can not determine what actions are illegal. The difference is that while hiding the law itself is clearly wrong in a very objective, supreme-court overturnable sort of way, classifying the government's interpretation of the law is doubleplusgood.

In fact, if this does make it to the Supreme Court, the DoJ can just say that they have an alternate, classified interpretation of The Constitution, that the Supreme Court can not know about this interpretation due to it being classified, and that this interpretation makes it legal for the government to radically reinterpret laws and classifying those reinterpretations.

Catch 22, SCOTUS, what do you do now? Before you answer, remember that you're not the branch with a Commander In Chief.

Catch 22, SCOTUS, what do you do now? Before you answer, remember that you're not the branch with a Commander In Chief.

The Supreme Court has asserted its authority over the President and Congress for over 200 years without the need of armed enforcement. If there's a conflict between two branches of government it is up to the people (who are the found of all power) to resolve it.

is that we have to sue our own government in an attempt to force them to tell us about the laws they are enforcing against us. That alone indicates a huge problem with the system, regardless of the nature of the laws themselves.

Totally agree, but that may be just how messed up our system is. I think it's an example of why at least some of the money that traditionally went to newspapers was helpful. If the NY Times didn't do this I doubt there'd be a long line of bloggers and community news aggregators wit

But if I, as a foreigner who's not really up to speed on the law or the legal system in the USA, has got this right, this particular law is not secret as such...As I understand it, this is a law that mainly regulate how the government is allowed to act against the USA citizens.The problem is that the USA government doesn't let the USA citizens know what it is or isn't allowed to do, so the citizens have no way of knowing if their government is breaking the law or not.If the NY Times loose this lawsuit, it i

The secret operations that a government conducts is realy just that, but when a citizen doesn't have the right to know what he/she must/musn't do... Then guess what? The US government is at war with its own citizens.

If the USA was my country, I'd hustle so people on Facebook and go to the streets with an axe. Oh wait... That's 'terrorism'.

How about when the Allied Forces were planning D-Day in 1944? Should they have released the timetable of the invasion?
Rightly or wrongly, the US and other Western governments consider themselves to be involved in a War on Terror(ism) and in war time you often have to over-rule certain democratic freedoms.
Just saying.

Seriously, this crap again? No one has ever suggested that battlefield movements be immediately published in the New York Times. It is a straw man argument that completely sidesteps the very real issue of the government doing lord-knows-what and hiding behind some completely unsubstantiated National Security claim. And as far as the War on Terror(ism) goes, it is not "rightly or wrongly"; it's wrongly.

Possibly because there have been a few minor changes in the world since your Constitution was written? Like, for instance, women getting votes, slavery being abolished, and no one but retards believing in God any more.

And what does any of that have to do with ignoring the Constitution? Women voting, freedom of religion and the abolition of slavery are in the Constitution.

Doesn't the 5th amendment to the constitution require laws to be clear and fair?

Indirectly, this is true. The 5th amendment to the US constitution guarantees the right to due process of law. And there is plenty of case law from the US Supreme Court making it clear that due process requires laws to be interpreted according to the language they contain. For example, "In deciding a question of statutory construction, we begin of course with the language of the statute." [Demarest v. Manspeaker, 1991].

The problem is when there is disagreement about what that language means. But that's for

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

I highlighted the important part. The heart of the concept of "due process of law" is that no one will be punished until they have been declared guilty of breaking a law in a fair trial. If the meaning of a law is so vague that neither judge nor jury can reasonably ascertain who is guilty of the law and who is not, then the only fair ruling it to acquit everyone accused of it. If the Supreme Court decides that a law cannot be reasonably interpreted, then no other court in the land should attempt to do so. In this case the law is void due to being unconstitutionally vague.

Also, even if the "Rule of Law" – the principle that all exercise of public powers must be based on Legislation – is not explicitly stated in the US Constitution (apart from Criminal Law as you quoted), the very meaning of a "Law" the drafters of the Constitution had in mind, was that a Law is a public document. If the government can reinterpret any law, and withhold this interpretation from the public, the whole purpose of any legislation becomes redundant, and the Congress is effectively strip

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

I highlighted the important part. The heart of the concept of "due process of law" is that no one will be punished until they have been declared guilty of breaking a law in a fair trial. If the meaning of a law is so vague that neither judge nor jury can reasonably ascertain who is guilty of the law and who is not, then the only fair ruling it to acquit everyone accused of it. If the Supreme Court decides that a law cannot be reasonably interpreted, then no other court in the land should attempt to do so. In this case the law is void due to being unconstitutionally vague.

I'll highlight another important part. Americans are scary in interpreting person as citizen. There's the guy with the sig about impeaching Obama for ordering the murder of a citizen. Ordering the murder of anyone is as wrong.It can be argued it wasn't murder as it is war time. Myself it seems as much as a war as the War on Drugs or the War on Poverty.Anyways the point is that everyone deserves and has the right to due process, not just the good guys (in their mind anyways).

The Constitution and the laws of the USA give the government a certain amount of latitude during time of declared war. Alas, that latitude doesn't apply just because we're fighting someone - it has to have the declaration of war to go with it.

And no, we don't have one with Yemen, Iraq, Afghanistan, or Al-Qaeda in general.

In any case, whatsisname was a US citizen, and absent him actually shooting

Service of process is only one aspect of getting a fair trial and perhaps you are being tripped up by the word "process" meaning two things in different circumstances (the actual paperwork you get served with, and the actual mechanism of trial).

Here's what Cornell Law School's website has to say about due process:

THE PROMISE OF LEGALITY AND FAIR PROCEDURE

While the text of the due process clause is extremely general, the fact that it appears twice makes clear that it states a central proposition. Histor

Congratulations on finishing a year of law school. When you finally make it into the real world you'll find that service of process is something that still gets argued over quite often, and the plaintiffs often win. Of course YMMV but in New York, this great state founded upon litigiousness, we have rules good sir. Shadow corporations (which are the common defense against service) don't really fly. I suppose that's why our industry has evacuated to the Confederate States of America.

Law student here, so take this with a grain of salt. The due process clause essentially purposes to prevent unfair service of process against people. For example, certain methods of process (i.e. serving someone), like mailing them a letter, may not be valid in certain circumstances. Due process takes into account primarily fairness in the service of process and whether the process is reasonably calculated to provide notice to the party being served.

So you must think that its ok for the government to kill Americans without trial, since "due process" only applies to process servers. Wonder why it says "deprived of life" in there? Is there much loss of life in the process server business you think?

Most of the congress critters don't even read the bill that's being put up for a vote, assuming they bother to show up for the vote.

To be fair, most of the bills being put up for a vote are unnecessarily wordy and obscure, with six zillion unrelated amendments attached. All of which makes a very dry reading and makes layman's head spin (before exploding.)

Most of the congress critters don't even read the bill that's being put up for a vote, assuming they bother to show up for the vote.

To be fair, most of the bills being put up for a vote are unnecessarily wordy and obscure, with six zillion unrelated amendments attached. All of which makes a very dry reading and makes layman's head spin (before exploding.)

So, all we need to do to fix this situation is force the congress critters to actually read these bills!!! Then, when their heads explode, we can replace them!

Unfortunately, sometimes you need a real entity with some clout in order to bring this kind of information to light. It shouldn't be the case, but it is. And I just can't see a blog having the resources to do something like this, or discovering the wiretaps a few years back, or uncovering Watergate.

Most of the time, news is nothing special... stuff happens and it gets written about - but sometimes it takes significant resources, and I just don't see any news blogs being able to muster up that kind of force. Which is why you won't be finding me cheering the death of newspapers.

Most of the time, news is nothing special... stuff happens and it gets written about - but sometimes it takes significant resources, and I just don't see any news blogs being able to muster up that kind of force. Which is why you won't be finding me cheering the death of newspapers.

This has nothing to do with "significant resources" and everything to do with significant access.

Newspaper Journalists do not have some magical ability to dig out information.Their main superpower is the ability to protect the identity of their sources. That's it.Everything else they do is about cultivating access to people with secrets.

As an example: Wikileaks doesn't have significant resources, all they have is a large public presence and a promise of anonymity.People come to them

You beat me to it. There are some VERY HARD PROBLEMS that need solving in the news business: the cost of copying someone else's content and distributing it to the world is effectively zero; there is always "somewhere else" to get the news, probably for free; lots of people don't care about non-celebrity-related news; and the entire print publishing industry has not done very well coping with the digital world. Plus there are big problems with the media as we know it today (as evidenced in the annual "top te

Agreed on the 'shrinking' bit. There are *two* shitty papers in my 2-square-mile 7k-person hometown. They are being replaced by a hyper-local blog (which itself is big news... it was sorta the first), and that's not a bad thing. But NYT, WaPo etc aren't going anywhere, probably. And they're the ones that can break these kinds of stories, so it's probably not the end of the world just yet.

As for Watergate... yes, that's true in the broadest sense, but Woodward and Bernstein did a huge amount of research. Dee

a never ending trail of privacy and rights disasters yet people are played deftly by the parties so that a perpetual state of power is maintained.

To think that even Congressmen have to jump through hoops to find out how the system works speaks loudly that the system is horribly broke. When you have a system run by lawyers looking for every little hole instead of looking for the truth or the spirit of the law you end up with lawlessness incarnate.

Or YOU could start an alternative party (or take over an existing one), build it up to national level then take over and fix the problems. We like to make excuses for all the bad horrible things the government does but the truth is most people just don't care.

That will never happen, but I think we can make it less open to, shall we say, loose interpretation.

Make the spirit of the law explicit. The first part of the law should state "This is the problem we are trying to resolve."

Then let judges determine whether or not the executive (or a plaintiff) is using that law for that particular purpose. If they're trying to use it for another purpose, let them go to Congress to get a new law passed.

The first part of the law should state "This is the problem we are trying to resolve."

Then let judges determine whether or not the executive (or a plaintiff) is using that law for that particular purpose.

Yea, that will work.

Like the way many federal laws start with "...interstate commerce..." (one of the few federal powers, so it's the justification for many federal laws), and then go on to legislate on things which aren't interstate commerce, and the courts play along. Wickard v. Filburn, as a single egregious example.

Many laws do have this kind of prelude and even those that don't have legislative history that may be helpful in ascertaining the purpose of the legislature in making the law.

That said, the law should be like open source code, freely available for anyone to read and analyze. Yes, it might be complicated and confusing to a non-lawyer, but computer code is complicated and confusing to a non-programmer. Even with that complicated nature, either can be analyzed with some study and effort, at least to some extent.

The real problem we have been having, starting with Bush's secret legal memos regarding due process free detention, and Obama's legal memo regarding due process free execution, is that the executive branch is essentially creating laws and keeping them secret making it impossible to know if what you are doing is something that will get you jailed or killed. That's a big deal, a dagger in the heart of what any free society is based upon, a shredding of the separation of powers, and ethically indefensible. There is no circumstance in which the rules of society ought to be secret.

To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

So although it was sold to the public as an anti-terrorism bill, it's right up front that they plan to use it for regular law enforcement too. A lot of other bills have a list of "whereas" in the beginning, listing the reasons and intent of the bill.

Of course none of this matters at all. The intent and history of the Second Amendment is brain-dead clear, but that doesn't stop people from trying to reinterpret it to rid themselves of a right they don't personally like. The 4th is pretty clear too, but it gets reinterpreted so that the contents of your cell phone aren't somehow equivalent to "papers and effects." And there's drug war property seizures in the face of the 5th's "nor be deprived of life, liberty, or property, without due process of law." You see, the legal action is against the property, not the person, so his rights don't come into play. I am not kidding, the cases read like "U.S. Government v. $10,000."

If the law or amendment is inconvenient to those currently in power, regardless of even the explicitly stated intent and clear history, they will simply reinterpret it so that it no longer is a problem for them.

You'd think - what possibly can go wrong with 'civil rights' act yes? Hah! Everything has gone wrong with it. It created more unemployment among minorities, not less, because employers just lost a bunch of rights and got themselves a bunch of obligations and certain employees got a bunch of entitlements that these employers are supposed to provide. Should the employers fail in any way (even in an imaginary way) to provide those entitlements, they will be dragged to court.

This raised price of employing certain groups of individuals, and their unemployment has tripled since that time the act was passed.

that's what property rights are about. With gov't out of business, there is no public property, everything is privately owned, and gov't is for protecting personal liberties and freedoms, property rights and border security. That's an expense item that does make sense.

So when a company owns part of the lake, other people own parts of it and properties adjacent to it. If they pollute it, that's what the court system is supposed to be for - protecting the right of individuals to their property, and gov't pow

An interpretation is applying a logical system to specific real-world scenarios. It does not necessarily against a law, it might be just nontrivial to deduce. You can think of laws as axioms and interpretations as theorems. Although the analogy is bad as legal systems are not logical systems.

It's easy to say things like this without any thought for the implications of what you propose. The fact is, there will always be at least ONE interpretation, and it will be this interpretation that will be followed. Even if you call it "black letter with no room for interpretation," it's still just one interpretation.

The same thing applies to code. There is no such thing as something independent of interpretation.

1.3 DefinitionsThe following definitions are used throughout this document:“Shall” defines a requirement that requires a waiver if not performed.“Will” defines a function that is expected to be performed during the implementation of the Project’s Parts Program, however does not require a waiver when not performed.“Should” defines a “best practice” and is strongly recommended but does not require a waiver when not performed.

I wrote a contract for a Company to build a test sled that would accelerate a 100 kg mass at 30m/s^2 in the horizontal and vertical orientation. They undersized the system so it could only do it in the horizontal orientation. They tried to claim that in the vertical it is already accelerating at 1g due to gravity.

Yikes, what's the difference between "will" and "should" under those definitions? Yeah, yeah, "expected" versus "strongly recommended", but unless they have another section defining those terms, all I see is "does not require a waiver". It's like corporate Simon Says... you gotta listen real close for the shalls versus the wills.

I think it's even worse than that. A "secret interpretation" doesn't even give us the basis for general expectations based on having an objective, available reference of the -same- code. This is more like having an entirely new spec with no necessary correspondence to the code available as the only means to characterize or evaluate it. Yet, it suggests the veneer of being like the objective reference by mere association with it.

It is, and it is not, this or any particular other thing at the sole discretion of those with access to the "secret" information that actually defines it. It seems like the very definition of institutionalized deception, that doesn't even acknowledge itself as such.

Hear, hear! The truth of what you say should be obvious to everyone because as we all know, coded systems never have unintended consequences and can always account for every situation that comes up "in the field".

Additionally, your comparison is quite apt because as everyone knows code is not ever subject to interpretation when it is executed. That is why we use one code to express everything.

I am reminded of the invention of the first formal symbolic logics. Philosophers were rightly excited to have set

Laws will always be open to interpretation and that's a good thing. If the law was automatic like code we wouldn't need courts, because the executive could just apply the appropriate law and be done with it. This would open the doors to blatant abuse and achieve an effect opposite from your intent, namely, that the laws are arbitrarily interpreted by the executive.

Here is how I see it. You shouldn't be convicted of a crime unless the law is specific. If someone slips through an exception in the law then it should be up to the legislators to close the exception not for the executive and judge to interpret.

whats even more crazy is some jurisdictions won't just send you a copy of the laws, but require payment "for the time and costs of producing them"... so how someone would knows the laws so they could avoid violating them if they didn't have the money to pay is beyond me.. and is wrong on so many levels

Note, many laws are now privately written. Electrical and building codes are closely held by private organizations, but laws are passed saying "must be up to current NECA standards" without directly citing the standards. You must pay a private company profit to be able to read the laws that apply to you. IRS laws are passed faster than they could be reasonably read by a regular person. As such, knowing the law is impossible. Additionally, not knowing the law is not a defense. The system is broken.

As soon as I read this bizarre plot I looked for the word "informant" and there it was:

The case began in May, when a Drug Enforcement Administration informant with ties to high-level leaders of Los Zetas told agents of a bizarre conversation

This looks like another entrapment case so the anti-terrorism squad can justify their existence. I find it really hard to imagine Iran getting involved with a used-car salesman to assassinate a diplomat.